RE MASUD RANA

CACV 312/2020

[2021] HKCA 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 312 OF 2020

(ON APPEAL FROM HCAL NO. 2036 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Bruno Chan (“the Judge”) given on 16 July 2020^[1] refusing him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 21 September 2018 which dismissed his appeal against the decisions of the Director of Immigration (“the Director”) of 16 March 2015 and 2 June 2017.  By his decision, the Director rejected his non-refoulement protection claim.  

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below. 

The applicant’s non-refoulement claim

4.  The applicant is a national of Bangladesh of 48 years old.  He arrived into Hong Kong on 20 December 2005 and was given permission to remain as a visitor until 3 January 2006.  He overstayed and was arrested by the police on 4 June 2008.  He raised a torture claim on 18 June 2008 which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

5.  The applicant’s claim was set out in detail in the Director’s first decision at [7] and the Board’s decision at [7] to [29] and summarized by the Judge at [2] to [5] of Form CALL-1.  The applicant’s claim is based on his fear of being harmed or killed by some local gangsters due to his refusal to pay extortion money to them. 

6.  In gist, the applicant’s father used to run a garment shop, and used to pay monthly extortion money to the local gangsters so that they would not cause disturbances or troubles to his business.  When the applicant took over the business on his father’s retirement, he continued the practice.  However, the business deteriorated and he could not afford the payment.  One day in September 2005, the local gangsters came to the shop.  They assaulted the applicant, broke the things there and took away the cash and goods in the shop. They threatened to close down the shop and kill the applicant if he did not make payment to them.  The applicant was afraid and went to Dhaka to hide. When he heard that the gangsters were looking for him, he decided to leave the country.  He went to mainland China from where he came to Hong Kong.

The Director’s decision

7.  By two decisions dated 16 March 2015 and 2 June 2017, the Director rejected the applicant’s non-refoulement claim.  The first decision covered the torture risk^[2], BOR 3 risk^[3] and persecution risk^[4] ground while the further decision concerned the BOR 2 risk^[5] ground.  The Director assessed the level of risk of harm from the local gangsters to be low, which was further lowered or negated by the availability of state protection and the viability of internal relocation.  The Director was also of the view that the applicant’s problem with the local gangsters was a private dispute and did not involve any state official or authority.  The Director concluded that the applicant failed to establish his entitlement to any of the applicable grounds.            

The Board’s decision

8.  The applicant appealed the Director’s first decision to the Board.  The Board heard the appeal on 8 August 2018.  By then the Director had given his further decision.  The Board’s appeal therefore covered all the four applicable grounds.  The applicant gave evidence at the oral hearing and had answered questions from the Board. 

9.  By its decision dated 21 September 2018, the Board dismissed the appeal. The Board held that while the applicant’s claim was consistent in general terms, there were aspects of his evidence that were inconsistent as detailed in [66] to [72] of the decision.  Despite accepting that some of the inconsistencies could be attributed to lapse of time, the Board had serious concerns as to the truthfulness of the claim.  After assessing all the evidence, the Board did not accept that the applicant had worked in a garment shop, was subject to demands for extortion money and had been assaulted due to failure to meet such demands.  The Board concluded that the applicant failed to establish his claim under any of the applicable grounds.        

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 24 September 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  The grounds he put forward for seeking relief had been summarized by the Judge as follows (at [11] of the Form CALL-1):

(1) The Director and the Board failed to consider the concept of extended state acquiescence.

(2) The Director failed to conduct sufficient enquiry into the relevant Country of Origin Information (“COI”).

(3) The Director and the Board failed to give proper reasons for finding no BOR 3 risk, and/or there was insufficient basis to support the finding.

(4) The Director and the Board failed to take into consideration the psychological strain and threats to the applicant arising from repeated threat to kill him.

(5) The Board failed to afford sufficient opportunity for him to clarify certain elements of his claim and also failed to follow up on pertinent and/or obvious questions.

The Judge’s decision

11.  The Judge heard the leave application at an oral hearing.  By his decision dated 16 July 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to apply for judicial review.  His reasons were set out at [12] to [16] of the Form CALL-1 as follows:

“12. These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of extended state acquiescence to his claim, and that it is clearly factually incorrect for him to claim that they had failed to give proper reasons for rejecting his claim under BOR 3 risk as both of them clearly and adequately did so in their decisions. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in their decisions being clearly and properly identified by the Applicant with sufficient details and particularity, I do not find any of these grounds reasonably arguable for his intended application.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 79 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

The grounds of appeal

12.  On 28 July 2020, the applicant filed a Notice of Appeal to appeal the decision of the Judge.  He stated the following as his grounds of appeal:

(1) There was a failure to properly assess his claim under all the applicable grounds, and that he would face genuine risk upon refoulement.

(2) There was a failure to consider the country of origin condition in the COI materials.   

Non-compliance with order to lodge skeleton argument

13.  Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  The directions were communicated to the applicant by the court’s letter dated 30 October 2020.

14.  The appeal was scheduled to be heard on 14 January 2021.  The Notice of Hearing dated 12 November 2020 reminded the applicant to lodge his skeleton argument by 17 December 2020 and further warned that should he failed to do so he would be deemed to waive his right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.

15.  The applicant failed to lodge a skeleton argument on or before 17 December 2020.  The hearing date was accordingly vacated.  By letter dated 22 December 2020, the court informed the applicant that the hearing date of 14 January 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

16.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Assessment of evidence and country of origin information materials and risks of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the process by which the decision was made.

18.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

Our reasons for decision

19.  The grounds of appeal put forward by the applicant in his Notice of Appeal are not viable grounds to reverse the Judge’s decision.  As pointed out above, it is not the task of the Judge in adjudicating on the applicant’s application to conduct a fresh assessment of his claim.  Assessment or risks of harm and country of origin condition and examination of COI materials are within the province of the primary decision makers and are not matters for the Judge. 

20.  Further and importantly, in light of the Board’s rejection of the applicant’s case and evidence, there is no credible evidence to support the applicant’s claim for non-refoulement protection.  

21.  We have examined the decisions of the Director and the Board, and do not discern any errors of law or procedural unfairness or irrationality in the decision of the Board.  We agree with the Judge that the applicant’s intended judicial review has no prospect of success

22.  For the above reasons, there is no merit in the applicant’s appeal.  We therefore dismiss the appeal.